Public Bill Committee

[Frank Cook in the Chair]

Schedule 6

Mental Capacity Act 2005: New Schedule A1

Angela Browning: I beg to move amendment No. 11, in schedule 6, page 79, line 9, at end insert—
‘(3) Where the managing authority deprives P of his liberty by detaining him as mentioned in paragraph 1(2), the appropriate NHS body or local authority which has authorised the detention shall make arrangements for the provision of the accommodation with care or treatment, and it shall be free of charge.’.
We come now to the question of charges and the Government’s provision to amend the Mental Capacity Act 2005. The issue was debated in another place, but the Government rejected its proposals, so I make no apology for reintroducing it in Committee.
There are clear differences in the treatment of patients deprived of their liberty under the Mental Capacity Act and that applied to those deprived of their liberty under the Mental Health Act 1983. In the previous sitting, I alluded to the fact that I hope that the Minister will give some clarification regarding those patients who drift, as it were, between one piece of legislation and the other—we have not as yet had such clarification.
There are costs associated with the treatment of patients whose liberty has been withdrawn under the Mental Capacity Act. Accommodation is free for a person who is sectioned under the Mental Health Act—their liberty has been taken from them so that they can be treated—but the Government propose to charge for the accommodation and care received by those who have their liberty deprived them under the Mental Capacity Act. A person detained under section 3 of the Mental Health Act would find, on discharge, that their after care was free, whereas the Government propose that under the Mental Capacity Act, after care will be subject to a charge.
Equally, the appeals process will treat differently two groups of people who have been deprived of their liberty. For those detained under the Mental Health Act, the appeals process will be free, whereas there will be a charge connected to the appeals process to the Court of Protection under the Mental Capacity Act. We are seeing the development not only of an unequal footing, but of a clear disadvantage, particularly on charging, for those patients whose liberty is removed under the Mental Capacity Act.
The Government did not accept that argument in the Lords, so I am asking the Minister to look at the matter again.

Chris Bryant: This is obviously an important issue. Will the hon. Lady comment on the situation of foreign nationals? I have friends who are consultant psychiatrists in London. They have told me that they regularly face foreign nationals with personality disorders whom they have to detain—they could not possibly allow such people to go free on the streets. They are not, however, British nationals. The consultants suspect that, sometimes, the relatives of foreign nationals with mental health problems come to London to dump them. That happens particularly in the case of people from African countries that do not have suitable mental health services. What does the hon. Lady think about charging in such a situation?

Angela Browning: We have clear rules about charging foreign nationals. It is a matter for the Government to determine health service policy, whether it is to do with physical or mental health. I have a lot of sympathy for people who are mentally ill. They often come to the attention of the appropriate authorities only after ending up on the streets. Anybody who is identified as having a serious illness is entitled to treatment—charging is a matter for the Government to decide. I would not preclude foreign nationals from receiving appropriate treatment whether they had come here of their own volition or been hoodwinked into coming here.
The legislation begins to identify and treat people differently, and to apply different sets of rules to people who, for their own good, have had their liberty removed. If people are sectioned under the existing Mental Health Act, everything is paid for, whereas those dealt with under the Mental Capacity Act are charged for their care. The danger for the Minister is that once the measures are operational and such things become apparent, relatives, carers and others might try to encourage patients down the Mental Health Act route because of the financial consequences for them and possibly even for those associated with them.

Tim Boswell: Does my hon. Friend agree that if the circumstances are broadly similar and patients are receiving the same regime, whether formally in a hospital or otherwise, and if the essential difference between them is that some are detained under the Mental Health Act and some under the rather more comprehensive provisions of the Mental Capacity Act—if there is no other difference except their in statutory detention—it is a prima facie case of discrimination under the European convention, because the public authorities will be delivering a service partially between one case and another?

Angela Browning: My hon. Friend is right. The purpose of the amendment tabled by my hon. Friends on both ends of the Bench is to establish what happens to a person deprived of liberty, particularly in a care home. It is a slightly different dimension from the Mental Health Act, because we are now considering not just hospitalisation but another kind of accommodation—care homes of one sort and another.
In all other cases where a person is detained, the charges are paid, but if someone is detained in a care home or nursing home, suddenly they are compared not to people detained under the Mental Health Act but to other people resident in care homes and nursing homes, who may well be there as a result of their decision, or that of their carers or relatives, that it is in their best interests. They might be self-funded, paid for by the local authority or a combination of the two. I suggest to the Minister that that is not a comparison for her to make, because such people are a separate group from those whose liberty is denied them for their own good but under the auspices of the Mental Capacity Act.
 Although we agree with the proposal, we think that it is unfair to expect people to pay once an authorisation to deprive them of their liberty has been granted. It will put them at a disadvantage relative to all others detained elsewhere, usually in hospitals. I think that the Minister has been looking through the wrong end of the telescope in opposing the amendment. I realise that it has big resource implications; of course it does.
 The Minister of State, Department of Health (Ms Rosie Winterton) indicated assent.

Angela Browning: The Minister is nodding. I hope to come to resources later in a little more detail, because she has flagged up her concern, but the fact that she is concerned about resources is no reason for her not to do the right and just thing. It is clearly right and just to the group of people described in the amendment for her to reconsider the issue. Otherwise, the consequence, perhaps unexpected, will be that over time, the Mental Capacity Act will be used only in certain circumstances, and that it will not be as effective, because people will opt for the Mental Health Act. That would be quite the wrong effect, and contrary to what she is trying to do in identifying how she will deal with the Bournewood determination in the European Court.

Rosie Winterton: As the hon. Lady said, the amendment seeks to provide free accommodation, care and treatment for all people deprived of liberty under the Mental Capacity Act 2005. I would like to challenge what she said about people choosing between the Mental Health Act 1983 and the Mental Capacity Act because there are obvious differences between the two. The criteria under the Mental Health Act are that an individual has a mental disorder of a degree or nature that they need to be in hospital, that they are a risk either to themselves or others and that appropriate medical treatment is available for their mental disorder. That is a very clear set of criteria. For people to be detained under the Mental Health Act, there must be a clinical judgment that all those criteria are met. One cannot go along and say, “I fancy being detained under the Mental Health Act.” One has to meet the strict criteria.
In the Mental Capacity Act, we are talking about an individual with a mental disorder who does not have the capacity to consent, and it is in their own best interests to be deprived of liberty; they are not a danger to others. We mentioned a number of such incidents this morning. Therefore, it is not a question of choosing between one of the two in a pick-and-mix approach. It is about meeting the criteria.
 Let us take the situation of a person who is being deprived of their liberty and is in a hospital setting. That person might have advanced dementia. Their relatives might be asked not to take that individual outside the ward because they could become disorientated and distressed. If that was felt to be a deprivation of liberty, that person would be assessed. Of course, they are in a hospital setting in which the care and stay is free. Therefore, what we are talking about is the cost of personal care in care homes. The people to whom the new safeguards will apply in terms of an authorisation for the deprivation of liberty will largely be those with severe dementia or similar problems. Many of them will be living in a residential care setting. Any financial contribution that they may make towards the cost of their care is determined by the national policy on means testing. Since 1948, health care has been provided free in England and Wales and social care is mean-tested. Nothing in those new safeguards calls into question those fundamental principles.
Obviously, safeguards will add new protections for the human rights of those people and independent checks will ensure that it is in their best interest to be deprived of their liberty. There will be new rights of challenge for them and their family if they disagree with decisions. Giving people new rights and protections is not a reason to change the arrangements that apply to funding, health and social care.
Again, I must stress that if a person was in a care home and subject to a standard authorisation to deprive them of liberty, it could only be because an independent assessment had concluded that it was necessary and in their own best interests to keep them safe. We do not think that that should lead to changes in the way that their care is commissioned and funded. In many ways, the care regime for such a person is likely to be the same as that for others in the care home with a similar condition. There will be restrictions for the person’s own protection, but that does not mean that their whole care package should suddenly be free of charge.
I shall give an example of an individual called Mary, who has been living in a care home for a number of years. She has considerable means and is paying for her care. She chose the home herself. She was able to go out regularly and enjoyed using all the shared facilities of the home and garden. Mary suffers from dementia and, over time, her behaviour has become extremely disturbed in a way that puts her safety at risk, both when she goes out and when she is in the home. Her family want her to remain in the familiar environment of the care home as long as possible, but it has become necessary to increase restrictions to keep her safe. Eventually, the care home decides that all of the restrictions may add up to a deprivation of liberty and seeks authorisation, which is granted. However, given that those restrictions have been granted in Mary’s best interests, there is no reason for there to be a change in how her care is funded.
We must consider the views of residents in circumstances when care for another resident suddenly becomes free because restrictions have been put in place for that person’s best interests, but their care does not. Under the amendment, Mary would immediately cease to pay for her care. That does not seem logical or fair to other residents. It would create unacceptable inequities between those care home residents who are deprived of liberty and those who are not.
 Let us consider Ruth and Jean, two ladies in their 80s who are both living alone. Ruth develops dementia and, after a time, can no longer look after herself. Carers are arranged, but she refuses to have them in the house. Things come to a head when she is found in the road, late on a winter’s night, unwell and in her nightclothes—something that we know can occur. An ambulance is called. When she has recovered enough, a placement is arranged in a care home. That move is supported by her daughter, but disputed by her son who wants her to go back home. Initially, Ruth is extremely unsettled in the care home and her behaviour is very disturbed. Taking account of all the circumstances, including the restrictions needed to keep her safe, the care home applies for authorisation to deprive her of her liberty, and that is granted.
Jean, meanwhile, suffers a major stroke. After a period of rehabilitation, she is not well enough to manage at home on her own. She is not able to make the decision herself and her family, with great regret, agree that it would be best to move her to a care home. If the amendment were accepted, Ruth’s care would be free, but Jean would have to pay for her care. That would be unfair.
 The decisions in such difficult cases are about whether it is necessary for a person to be deprived of liberty and whether that should be based purely on the genuine care and treatment needs of the person concerned. The amendment would risk introducing financial considerations into the equation. If we are talking about opting for different scenarios, it would almost be better for the person to reach a situation in which they were being deprived of their liberty because, under the amendment, their care would then become free. That perverse incentive would arise from the amendment.
 The amendment would also place a duty on the NHS body or local authority that had authorised deprivation of liberty to make arrangements for the provision of the relevant accommodation. The supervisory body might also be involved in commissioning care arrangements, but that would not always be so—for example, it would not be involved if a private arrangement had been made between a family and the care home.
There are some genuine problems with the approach that is being proposed. We need to ensure that there are safeguards in provision of care that requires restrictions. Treatment is not covered. The hon. Lady’s proposals would introduce what is tantamount to an incentive for people to be deprived of their liberty, because that would be the cheaper option. They could also create distinctions between, for example, two care home residents, both of whom are receiving good care and attention, by allowing only one to receive free care. For that reason I ask the hon. Lady to withdraw her amendment.

Angela Browning: I do not really buy the Minister’s arguments and I increasingly feel that those arguments are resource driven. Her own Department’s documentation, in describing such people, refers to them as
“a small group of people who need to be kept in a hospital or a care home with a lot of controls on their freedom in order to protect them from harm.”
 By definition, therefore, the Minister is contemplating a small, discrete group, and the resource implications consequently should not be prohibitive.
Detention and deprivation of liberty under the Mental Capacity Act are subject to article 5 of the European convention on human rights. Contravention of that article led to the Bournewood determination in the first place. Article 14 of the convention prohibits unjustified discrimination in the application of any of the other articles, including—of course—article 5, so there is not necessarily any difference between people detained under the Bournewood provisions and others in the same accommodation who are being looked after under, say, section 117 of the Mental Health Act. Both might lack capacity, be compliant, have a mental disorder or disability, need residential care, require high levels of care and be subject in their own interests to legislation, yet one would be charged and the other would not.
That point was made to the Government by the Joint Committee on Human Rights. In paragraph 91 of its communication to the Minister, it said:
“In our opinion, to charge someone for accommodation in which they are deprived of their liberty potentially engages civil rights and obligations and therefore the right to access to a court to determine those rights under Article 6 of the Convention. There is potential for discrimination for the purposes ofArticles 5 and 6 and Article 14, in that a person deprived of their liberty in their own best interests in a hospital will not be charged for the detention whereas a person deprived of their liberty in their own best interests in a care home will”.
I understand that the Government responded to that in the main simply by listing the current provisions, rather than by giving a substantive reply.
I am not a lawyer, let alone a human rights lawyer; there are others more knowledgeable than I who are. I am prepared to withdraw the amendment, but I must press the Minister to ask her officials to look again at the convention, and in particular the interaction between articles 5, 6 and 14. It seems to me that it is not only those of us who tabled the amendment who believe that there is unfairness and discrepancy.

Chris Bryant: The hon. Lady said that the problem is one of resources, so I presume that she would not be so irresponsible as to table an amendment whose cost implications she did not know. What does she think those cost implications would be?

Angela Browning: I tabled the amendment because of what is said in the Bill, and I want the Minister to explain how this group of people will be treated. I do not believe that there are huge resource implications. I repeat the words used by the Minister, which were that “a small group of people” will need to be detained under certain conditions. The hon. Gentleman is right that there are resource implications, but I would not have thought that they were so enormous overall that the Minister would need to turn down the request for the provisions to be included in the Bill. I am more concerned about whether the provision complies with the European convention, because if it does not we will have more test cases. That would be ironic, given that it was contravention of article 5 that led to the Bournewood judgment in the first place.
I will withdraw the amendment, but I ask the Minister to engage with her officials and hold any other audiences that need to be held to pursue the matter and get some clarity on how different parts of the convention overlap. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 48, in schedule 6, page 88, line 1, leave out sub-paragraphs (2) and (3) and insert—
‘(2) The maximum authorisation period is the shorter of these periods—
(a) the period which, in the assessor’s opinion, would be the appropriate maximum period for the relevant person to be a detained resident under the standard authorisation that has been requested;
(b) 1 year, or such shorter period as may be prescribed in regulations.
(3) Regulations under sub-paragraph (2)(b)—
(a) need not provide for a shorter period to apply in relation to all standard authorisations;
(b) may provide for different periods to apply in relation to different kinds of standard authorisations.
(4) Before making regulations under sub-paragraph (2)(b) the Secretary of State must consult all of the following—
(a) each body required by regulations under paragraph 161 to monitor and report on the operation of this Schedule in relation to England;
(b) such other persons as the Secretary of State considers it appropriate to consult.
(5) Before making regulations under sub-paragraph (2)(b) the National Assembly for Wales must consult all of the following—
(a) each person or body directed under paragraph 162(2) to carry out any function of the Assembly of monitoring and reporting on the operation of this Schedule in relation to Wales;
(b) such other persons as the Assembly considers it appropriate to consult.’.—[Ms Winterton.]

Angela Browning: I beg to move amendment No. 72, in schedule 6, page 88, line 23, at end insert—
‘( ) The relevant person, when they are consulted by the best interests assessor under paragraph 4(7) of the Mental Capacity Act 2005, has the right to the support of an appointed Independent Mental Capacity Advocate during the assessment process.’.
The amendment deals with independent advocacy, which we have touched upon briefly. The Minister said she would bring back proposals in the light of discussions in another place, where the Minister there said that the Government wanted to provide tailored advocacy. I can think of nothing more appropriate to tailored advocacy than the requirement in the amendment.
We believe that it is very important that the relevant person, when they are consulted by the best interests assessor under section 4(7) of the Mental Capacity Act, has the right to the support of an appointed, independent mental capacity advocate during the assessment process. The relevant person should have that access if they need it. Not all will need it, but the Bill should provide a facility for an independent advocate to be part of the decision making right at the beginning. I am not saying that it is needed exclusively at the beginning; there are other points at which independent advocacy is needed throughout the process of implementing that part of the 2005 Act, as amended.
Advocacy is important—it is the key to promoting the rights and needs of patients deprived of their liberty. When the Mental Capacity Bill was before the House we had a lot of detailed discussion about advocacy being important, not least for some patients in communicating their views. It is sometimes important also for the person who is trying to assist the patient, whether they are a professional, a carer or someone who has the right under the 2005 Act to represent the patient’s views. They would all benefit from the help of an independent advocate. A person lacking the capacity to consent to their care and treatment is likely to need support to express their views, and there could be other communication complications that require expertise.
One of our worries when the 2005 Act went through was that if there was insufficient advocacy—if it was not provided in a timely fashion and the advocate was not able to assist and intervene—decisions would be made without the person’s view being properly understood. That is important, as is the right to support during the assessment process.
The purpose of the amendment is to ask the Minister yet again what the Government’s intention is for independent advocacy, which the Making Decisions Alliance is already on record as supporting. Independent advocacy is also supported by the Disability Rights Commission, which stated
“Without rights to independent advocacy access to such a vital service will remain a postcode lottery and at the discretion of mental health professionals. Without such rights the Bill will not, in our view, provide effective protection for the human rights of mental health service users in situations where they risk being deprived of their liberty... Advocacy forms a vital safeguard against the improper use of power against a person denied their liberty.”
 That statement could apply to many parts of the Bill. However, it is particularly important here because we believe that a person’s treatment will benefit from access to independent advocacy. It could prevent much misunderstanding during their treatment and management. Although I am well aware of the resource implications of early intervention and early access to independent advocacy, it could in the long run save money and prevent wrong decisions from being made.

Rosie Winterton: I certainly sympathise with the aims of the amendment, but I hope that, when I explain more about the best interests assessor, the hon. Lady will accept that the aims of the amendment are covered by the safeguards that we are introducing.
 The safeguards that we are adding to the Mental Capacity Act 2005 will introduce someone whose only role in the process is to establish and recommend what is in the best interests of the person concerned. That will be the role of the best interests assessor, who will be independent of everyone else in the process and who will act in the best interests of the individual. It will be the job and statutory duty of the best interests assessor to involve the person as far as possible and to take account of their past and present wishes, feelings, beliefs and values. The independent best interests assessor will need to do all they can to involve the person and find out what their views and wishes are, and the assessor should have the competence and skills to do that. Of course, that is a challenge and if the best interests assessor feels that an advocate would help with the process, they can ask for one to be appointed. However, it is the job of the best interests assessor to ensure that they know the views of the individual so that they can make the assessment in an independent way.

Tim Boswell: I am grateful to the Minister for assisting the Committee as we look at some sensitive matters. Would she agree that this paragon—the best interests assessor—should have a duty not only to consider the wishes and previously expressed views and values of the patient, but to make their own judgment? That might be contrary to previously expressed wishes if they were felt not to be in the best interests of the person. If that is the case, can the Minister assure the Committee that the paragons, as I call them, will be sufficiently trained and have the robustness to make the right decision? Of course, they will not always get it right, but we would like to feel that they will address the matter in a well informed way. My hon. Friend the Member for Tiverton and Honiton made the point, to which the Minister has partially replied, that it might well be sensible for them to take a second opinion from an independent assessor, if that is helpful to the process.

Rosie Winterton: The best interests assessor is an independent assessor; that is the point of having them. If necessary, they could say that it would be helpful to appoint an advocate—although they would not do the appointing as that would be done by the PCT or local authority. It is the job of the best interests assessor to try to ascertain the wishes of the individual. The Mental Capacity Act code of guidance gives extensive guidance on the practical issue of communicating with people who may lack capacity. It is important that, in many cases, the assessor involves others who are perhaps used to communicating with the person. That might be the family or carers who have established a relationship of trust; or they may need to involve specialist interpreters, signers or, if relevant, advocates. We are making it clear that the independent assessor should follow that route. The support of an independent mental health advocate as well would not be necessary in all circumstances, except for the real circumstances of there being no one appropriate among friends or family to consult, which we all refer back to in the Mental Capacity Act.
 Our problem with the amendment is the possibility of the IMHA and the best interests assessor both seeking the input of the person concerned and both speaking to family, friends and carers, which would not only be cumbersome but also quite confusing for the person and the family. Frankly, it might also be quite intrusive and heavy-handed and, because of the possible confusion, could cause unnecessary distress and anxiety, which I know the hon. Lady would not want to see. I am sure that the amendment is probing and designed to explore the role of the independent assessor.

Angela Browning: Who would the Minister imagine to be the independent assessor? Is it most likely to be a social worker?

Rosie Winterton: Yes. I hope that with those reassurances the hon. Lady will withdraw her amendment.

Angela Browning: I have listened carefully to the Minister’s answer. I perked up right at the beginning when she expressed some sympathy, but she cooled off. I felt dashed at the end, because she was not warming to our proposal.
 There is a practical problem. Not all social workers in the role of independent assessor would, for example, be specialists in non-verbal communications. An IMHA would then be needed, because hopefully they would have that sort of specialism. Specialists are needed to assist people with non-verbal communication—not just those without speech because of a physical disability, but particularly those who are poor at communicating because they have a communication disorder, for example.

Tim Boswell: Does my hon. Friend agree that an important competence for the independent assessor should be the ability to know when they are getting out of their depth? They need to know when to call in an expert, either to assist with communication or because of some other aspect of the best interest test that they might need to consider.

Angela Browning: Indeed, and although I hope that that would not be the norm, one can envisage an advocate not being employed to support the person to communicate. In practice, the best interests assessor might rely quite heavily on information from family members or carers, who may be experts in communicating with the person. That often happens and would not be a problem. However, there are occasionally other cases. I recall service users giving evidence to the Mental Capacity Bill scrutiny Committee almost making a unilateral declaration of independence of mum and dad and highlighting the possibility of circumstances in which mum and dad are not advocating or proposing what the person concerned would like to be known. I suggest that those are a minority of cases rather than the norm, but the legislation needs to safeguard against such unintended consequences. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Rosie Winterton: I beg to move amendment No. 49, in schedule 6, page 91, line 31, leave out from ‘right’ to end of line 32 and insert
‘to make an application to the court to exercise its jurisdiction under section 21A;’.

Frank Cook: With this it will be convenient to discuss Government amendments Nos. 51 and 52.

Rosie Winterton: The amendments change the wording used to refer to application to the Court of Protection. They are purely technical and do not in any way alter the rights of the person concerned, or of that person’s representative, to make applications to the Court of Protection about deprivation of liberty. Their purpose is to ensure that references to access to the court are completely accurate. The correct reference is to a right to make an application that the court exercise its jurisdiction under section 21A of the 2005 Act, rather than to the right to make an application under section 21A. The subject matter is very technical. I hope that the Committee will support the amendments.

Amendment agreed to.

Rosie Winterton: I beg to move amendment No. 50, in schedule 6, page 94, line 32, at end insert—
‘(aa) the person to whom the request relates;’.
 The amendment would ensure that the person concerned was informed if a request was made to assess whether they were being unlawfully deprived of their liberty. We expect such situations to arise only very rarely. If a person such as a family member believed that their relative’s liberty was being removed unlawfully, they should draw that to the attention of the hospital or care home managers and ask them either to apply for an authorisation or end the deprivation of liberty. If the managers did not take action, the third party could apply to the supervisory body to commission an assessment of whether there was deprivation. If the outcome was that the deprivation was unauthorised, the full assessment procedure was immediately triggered as if the managers had applied for an authorisation.
 The amendment requires the person concerned to be informed by the supervisory body that a request has been made to assess whether there is deprivation of liberty, to be informed of whether an assessor has been appointed, and to know the name of the assessor and the outcome of the assessment. In most cases, the request would be made by a family member or friend, who would be able to tell the person concerned. The amendment is simply for completeness. It will provide an important protection and I hope that it will be accepted.

Tim Boswell: It is self-evident, I think, that the amendment more or less covers the population of people who might have an interest in the matter and is designed to ensure the issuance of a formal notice to the person concerned. If that person had others acting for them, such as an attorney under the Mental Capacity Act, would the notification to that person be available to the others who were acting on their behalf and how would it reach them? Has the procedure really been as comprehensively tied up as I am sure both the Minister and I would wish?

Rosie Winterton: That is a very good question, to which I am awaiting the answer. If, for example, the Court of Protection appointee was looking after the care of the individual and taking decisions, I suspect it would be right for them to be informed. If, however, the individual merely had a financial authorisation from the Court of Protection, notification might not be appropriate. I suspect that it might be good practice, but individuals should make sure that they were not breaching confidences. We will address it in the code of practice, particularly now that it has been so carefully drawn to our attention.

Tim Boswell: I do not think that I can ask for more than that, although the second course is arriving even as I speak. However, rather than make a meal of it now, will the Minister at least undertake to reflect on the point? We have a common objective; it is simply a matter of ensuring that all the relevant people who might be involved, whether deputies, attorneys or whatever, get to know about a request without breaching confidences or embarrassing anyone.

Rosie Winterton: I am helpfully informed that notification of the attorneys and deputies is decision-specific, so I was right on that. So the answer is: it depends. We will explore that in the code of practice.

Amendment agreed to.

Amendments made: No. 51, in schedule 6, page 97, line 34, leave out from ‘right’ to end of line 35 and insert
‘to make an application to the court to exercise its jurisdiction under section 21A.’.
No. 52, in schedule 6, page 116, line 33, after ‘court’, insert ‘to exercise its jurisdiction’.—[Ms Winterton.]

Angela Browning: I beg to move amendment No. 12, in schedule 6, page 116, line 34, at end insert—

‘Part 11A

‘serious medical treatment

None

161 (1) This paragraph applies to a person (P) who is deprived of liberty in accordance with this schedule if an NHS body is proposing to provide, or secure the provision of, serious medical treatment within section 37(6) to him.
(2) P shall not be given the treatment unless a registered medical practitioner (other than the medical practitioner in charge of the care of the patient) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment but that it is in the best interests of the patient in accordance with this Act that the treatment be given.
(3) Before giving a certificate under sub-paragraph (b) the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient’s medical treatment, and of those persons one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner.’.
Although it comes late in the day in the consideration of the Bill, this is a very important amendment, and I mean that seriously. I know that Labour Members have their minds on other matters, but it merits some time.

Rosie Winterton: No, we are rapt.

Angela Browning: I am grateful. The amendment is about the provision for a second medical opinion on the treatment of serious medical conditions. I think it would be helpful if I began by clarifying what we mean by serious medical treatment. In the context of the relevant group of patients, we obviously think of electroconvulsive therapy. We discussed ECT earlier in the Committee, and it is a subject that immediately alerts people to the need for safeguards, but the term also includes major surgery, such as open heart surgery; certain types of chemotherapy or cancer surgery; major amputations; treatments that will result in permanent loss of hearing or sight; the withholding or withdrawing of certain types of treatment, and abortion or caesarean section, although not termination of pregnancy.
Those are all serious procedures, and one would hope that anybody detained under the Mental Capacity Act would also be provided with the right to a second opinion when any such procedure was being considered. Within the context of that Act there is very small group of people who are befriended and have support in decision making on those matters. That responsibility often rests with relatives or carers, but I believe that the vast majority of those patients will find that they are severely disadvantaged because they come within the scope of the Mental Capacity Act and that Act lacks the safeguard of a right to second opinion. I believe that they should have a right to a second medical opinion on such serious medical treatments.
Those treatments, including medication and ECT, should be approved by an independent clinician through a second-opinion procedure. Under the Mental Health Act 1983 there is a statutory second medical opinion procedure for medication beyond three months and for ECT, and it seems iniquitous that the same safeguards should not be given to people treated under the Bournewood provisions. I find it hard to believe that the Minister can justify that group of people not receiving the same protections.
The second-opinion doctor should be a specialist in the field of medicine proposed. I know that the Government believe that that is unnecessary, as the person’s representative or an IMHA advocate will be able to request a second opinion on serious medical treatment if they consider it necessary, but I do not think that that gives the surety that such people will be knowledgeable enough in that area of medicine to know when a second opinion should be sought. Whether they go out of their way to seek that second opinion will be pretty hit and miss if it is not in the Bill. They might not have the skills to recognise when a second opinion is needed.
We are considering some serious inequalities between a group of people treated under the Bournewood rules and the Mental Capacity Act and those subject both to the Mental Health Act and to what is sometimes normal medical practice in a serious situation. I hope that the Government will be amenable to considering those groups of people again. Before the Minister jumps up or the hon. Member for Rhondda asks me if I have costed my proposal, let me say that I do not think that there will be huge resource implications, but in the interests of the patient without the right to a second opinion—and of the medical staff taking responsibility for them in complex and serious situations—I ask the Minister seriously to consider accepting the amendment.

Tim Boswell: I echo my hon. Friend’s remarks. These are serious matters in substance, and there are concerns about anomalies between the treatment of Mental Capacity Act or Bournewood patients and those detained under the Mental Health Act. I understand that it may not be possible to produce an identity of treatment, but I am sure that we all want safeguards in order to get as near to that as we can. I should like to add two points to the mix for the Minister to consider.
The first—I am not sure whether something was said about it while I was detained outside the Committee this morning—is the question of the status under the Human Rights Act 1998 of any resident of an independent care home. It is a matter of some concern in the wider context whether the protections of that Act are available as they would be to a resident of a public hospital.
 The second point, which has only recently come to my attention—I am worried that another interpretation may even be possible—arises from the fact that the Government are considering corporate manslaughter legislation. One would like to feel that the safeguards of such legislation will be available to patients equally, whether they are detained under the Mental Health Act or the Mental Capacity Act—that is one test—and whether they are resident in a private sector care home or hospital, or in public provision.
Nobody is saying that we can produce an ideal and perfect solution, but it is important to reduce the anomalies to a bare minimum. It is also important to remember that such matters involve extremely serious decisions—by definition, life-or-death and related important decisions—and we owe it to those vulnerable people to ensure that they are treated properly and given all the rights available to their counterparts under the law.

Rosie Winterton: I hope that I shall be able to give some reassurance. I understand the desire to ensure that all the proper safeguards are in place, but a deprivation of liberty authorisation deals only with the deprivation of liberty. It does not authorise any course of treatment. The provision of treatment to a person who lacks capacity to consent must be in accordance with the arrangements and safeguards in the Mental Capacity Act. The authorisation is entirely different; it is simply about the deprivation of liberty.
Where the primary reason for the deprivation of liberty is to allow treatment to take place, the benefits of treatment would be considered as part of the best interests assessment. That does not replace but is in addition to the requirement to comply with the Mental Capacity Act. We are talking about two entirely different things: deprivation of liberty and the provision of medical treatment, which reverts back to the Mental Capacity Act. For that reason, I urge the hon. Lady to withdraw the amendment.

Angela Browning: Will the Minister clarify the position regarding a second medical opinion being sought when serious medical treatment is being considered?

Rosie Winterton: If a second medical opinion is required under the Mental Capacity Act, the requirement would come into effect at that time. However, that is to do with treatment issues under the Mental Capacity Act. Under the Mental Health Act, which is entirely different, a second medical opinion is sought, first, before admission to hospital and, secondly, if there is a compulsory treatment order concerning, say, medication. Treatment under the Mental Health Act is an entirely different issue. The Mental Capacity Act kicks in, as it were, in relation to treatment, but the schedule is about the deprivation of liberty that arises from Bournewood. The authorisation for such a deprivation is different—it does not bring about treatment.

Tim Boswell: I think that the Minister is helping us. As I see it, the measure will effectively establish a defence for a clinician against an accusation of depriving a person of their liberty under Bournewood terms; it is about determining whether they have committed an offence by detaining somebody against their will, which is important.
The Minister then said that all of the safeguards available under the Mental Capacity Act will continue in relation to treatment, which I understand. However, if the distinction that she is making is complicated and only just intelligible to the Committee, it is important that clinicians are properly trained on the interaction of the two provisions and that their clinical decisions are carefully recorded in terms of what powers they are using and when. In a real world situation, the decision to detain and the decision to treat are not quite as discrete as they appear in the tidy minds of the draftsmen; they might be consecutive or contemporaneous.
Having spent some time briefing people on how the Mental Capacity Act works, I can see that there will be serious difficulties in explaining even to sophisticated clinicians exactly what the critical path of decision making would be. That is not to disagree with the Minister, because she has made a fair distinction. The distinction, however, needs to be conveyed in simple but sufficiently comprehensive terms to those who will be making the clinical decisions.

Rosie Winterton: I certainly take on board the fact that we need to communicate simply and clearly. The hon. Gentleman referred to clinicians, but they might not be the people who decide on the deprivation of liberty. The measure is most likely to be used in respect of someone in a care home; it is not about medical treatment. We need to be clear that we are not necessarily talking about decisions that would be made by clinicians. With that, I hope that the hon. Lady withdraws the amendment.

Angela Browning: I have to say to the Minister that I would like to go away and study the matter and to come back on Thursday, but I do not have such an opportunity. I will go away and study and come back on Report because I am not totally convinced about the Minister praying in aid the Mental Capacity Act and the best interests provisions. I am not clear whether she is relying on the best interests measure in that Act to determine the issue. If that is the case, I have ongoing reservations. I think that the principle of a right to a second opinion should apply, whether or not best interests determine the decision on serious treatment. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That this schedule, as amended, be the Sixth schedule to the Bill.

Angela Browning: I want to speak to schedule 6 because it is the principal part of the Bill that involves the Bournewood determination and the way in which the Minister intends to put it into legislation. In the debate on the amendments, I flagged up a very clear differentiation in treatment between people who are detained under the Mental Health Act and those detained under the Mental Capacity Act. That is not to say that I withdraw my support for the Minister in enshrining the Bournewood outcomes into the Mental Capacity Act rather than the Mental Health Act. We are all agreed on that, but as I said at the beginning, we need to get this right. The Minister’s rejection of some of the amendments tabled in this Committee and in the other place was clearly based on resource implications. We all understand that for the Government, those implications are material and have to be taken into account.
 However, when the Minister considers how to implement the schedule I should like her to look again at the advice that she herself issued when the Bournewood judgment was published. The Department immediately sent out interim guidelines to PCTs, social services departments and so on. In that advice, the Minister flagged up something that I have been alluding to in our discussions of the amendments to schedule 6. We can see the differentiation very clearly. In the guidelines, the Minister alluded to the fact that there was a choice between detaining people under the Mental Health Act, which was all that the Government had at the time, or detaining people but not under the Mental Health Act. She alerted professionals in the field to the fact that
a significant increase in the use of the Mental Health Act will inevitably put considerable further pressure on local authority approved social workers, the availability of second opinion appointed doctors (SOADs)”—
whom we discussed this morning—
“and on the operation of Mental Health Review Tribunals (MHRT).”
I must say to the Minister that, when it comes to getting the response to the Bournewood judgment right and enshrining it in statute, I still have reservations that her concerns about resources and funding are influencing her to reject amendments that have been tabled not only in this Committee but in another place. I have no doubt that we will return to those on Report and in another place.

Question put and agreed to.

Schedule 6, as amended, agreed to.

Frank Cook: I must make an announcement. Hon. Members are unquestionably sending text messages or responding to them. The Chairman’s Panel has specifically disapproved of such a practice. Therefore, I am appealing to all hon. Members on their honour to desist forthwith. If there is a need to send or respond to a text message, it can always be done outside the Room and outside my sight.

Schedule 7 agreed to.

Schedule 8

Amendments relating to new section 4A of, & Schedule A1 to, Mental Capacity Act 2005

Amendment made: No. 53, in schedule 8, page 132, line 31, after ‘paragraph’, insert ‘42(2)(b),’.— [Ms Winterton.]

Schedule 8, as amended, agreed to.

Clauses 48 to 50 ordered to stand part of the Bill.

Schedule 9 agreed to.

Clauses 51 and 52 ordered to stand part of the Bill.

Schedule 10

Repeals and revocations

Amendments made: No. 34, in schedule 10, page 138, line 29, column 2, at end insert—
‘Sections 25A to 25J.’.
No. 35, in schedule 10, page 138, line 31, column 2, at end insert—
‘In section 32(2)(c), the words “or to after-care under supervision”.
In section 34—
(a) in subsection (1), the definitions of “the community responsible medical officer” and “the supervisor”, and
(b) subsection (1A).
In section 66(1)—
(a) paragraphs (ga), (gb) and (gc) (and the word “or” at the end of each of those paragraphs), and
(b) in sub-paragraph (i), the words from “or, in the cases” to the end.
In section 66(2)—
(a) in paragraph (d), the words “and (gb)”, and
(b) paragraph (fa).
In section 67(1), the words “or to after-care under supervision”.’.
No. 36, in schedule 10, page 138, line 32, column 2, at end insert—
‘Section 72(4A).
In section 76(1), the words from “or to after-care” to “leaves hospital)”.
Section 117(2A).
Section 127(2A).
In section 145—
(a) in subsection (1), the definitions of “the responsible after-care bodies” and “supervision application”, and
(b) subsection (1A).’.
No. 37, in schedule 10, page 138, line 34, column 2, at end insert—
‘In Part 1 of Schedule 1—
(a) in paragraph 2, the words “, 25A, 25B”, and
(b) paragraph 8A.’.
No. 38, in schedule 10, page 138, line 34, at end insert—
‘Mental Health (Patients in the Community)Act 1995 (c. 52)
 Section 1(1). In Schedule 1—
(a) in paragraph 2, paragraph (c) (and the word “and” immediately preceding it),
(b) in paragraph 11, paragraph (a) (and the word “and” at the end of that paragraph), and
(c) paragraphs 3, 4, 6, 7, 8(2), 10(1) to (3), 12, 13, 18 and 20.’.
No. 39, in schedule 10, page 138, line 36, at end insert—
‘National Health Service Reform and Health Care Professions Act 2002 (c. 17)
 In Schedule 2, paragraphs 43to 45.
Civil PartnershipAct 2004 (c. 33)
In Schedule 27, in paragraph 86, paragraph (b) (and the word “and” immediately preceding it).’.

Schedule 10, as amended, agreed to.

Clause 53

Commencement

Amendments made: No. 31, in clause 53, page 45, line 38, leave out ‘54 and’ and insert
‘[Commencement of section [Repeal of provisions for after-care under supervision]] to’.
No. 32, in clause 53, page 46, line 10, after ‘(4)(b)’, insert
‘(including provision within section [Commencement of section [Repeal of provisions for after-care under supervision]])’.—[Ms Winterton.]

Clause 53, as amended, ordered to stand part of the Bill.

Clause 54 ordered to stand part of the Bill.

Clause 55

Short title

Amendment made: No. 33, in clause 55, page 46, line 22, leave out subsection (2).—[Ms Winterton.]

Question proposed, That the clause, as amended, stand part of the Bill.

Tim Loughton: I usually try to put something into the last clause of a Bill. The Government have just taken out something without explaining why, but we shall pass that by. There is already a Mental Health Act 1983 and a Mental Health Act 1959, and my experience of dealing with legislation on children during the past few years is that a lot of Acts either have the title “Children Act” or have the word “children” somewhere in the title. I wonder why the Bill cannot be called the Mental Health (Amendment) Bill, given that it is a Bill to amend the 1983 Act rather than a Bill in its own right. That would at least distinguish it when people are referring to different parts of the mental health legislation.

Rosie Winterton: In my experience to date, titles of Bills are subject to endless discussion—unsurprisingly. There was much discussion, for example, on whether the Mental Capacity Bill should instead have been called the Mental Incapacity Bill. We have to rely on the outstanding advice that we receive, and on this occasion we were advised that the right title would be “Mental Health Bill”.

Question put and agreed to.

Clause 55, as amended, ordered to stand part of the Bill.

New Clause 12

Repeal of provisions for after-care under supervision
‘(1) The 1983 Act is amended as follows.
(2) Sections 25A to 25J (after-care under supervision) are omitted.
(3) In section 66 (applications to tribunals), insubsection (2)(c), for “cases mentioned in paragraphs (c) and (ga)” substitute “case mentioned in paragraph (c)”.
(4) In Part 1 of Schedule 1 (application of certain provisions to patients subject to hospital and guardianship orders: patients not subject to special restrictions), in paragraph 1, for “25C” substitute “26”.’.—[Ms Winterton.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 13

Commencement of section [Repeal of provisions for after-care under supervision]
‘(1) An order under section 53 providing for the commencement of section [Repeal of provisions for after-care under supervision] may, in particular, provide—
(a) for that section not to apply to or affect a patient who is subject to after-care under supervision immediately before that commencement, and
(b) for the patient to cease to be subject to after-care under supervision, and for his case to be dealt with, in accordance with provision made by the order.
(2) The order may require—
(a) a Primary Care Trust or Local Health Board to secure that the patient is examined by a registered medical practitioner of a description specified in the order;
(b) the registered medical practitioner to examine the patient with a view to making a decision about his case by reference to criteria specified in the order.
(3) The order may require the registered medical practitioner, having complied with provision made by virtue ofsubsection (2)(b)—
(a) to discharge the patient,
(b) to recommend that he be detained in hospital,
(c) to recommend that he be received into guardianship, or
(d) to make a community treatment order in respect of him.
(4) The order may, in respect of a recommendation made by virtue of subsection (3)(b) or (c)—
(a) provide that the recommendation is to be made to a local social services authority determined in accordance with the order;
(b) provide that the recommendation is to be made in accordance with any other requirements specified in the order;
(c) require the local social services authority determined in accordance with paragraph (a), in response to the recommendation, to make arrangements for an approved mental health professional to consider the patient’s case on their behalf.
(5) The order may provide that a registered medical practitioner shall not make a community treatment order in respect of a patient unless an approved mental health professional states in writing—
(a) that he agrees with the decision made by the practitioner about the patient’s case, and
(b) that it is appropriate to make the order.
(6) An order requiring a registered medical practitioner to make a community treatment order in respect of a patient shall include provision about—
(a) the effect of the community treatment order (in particular, replacing after-care under supervision with a contingent requirement to attend, and be detained at, a hospital), and
(b) the effect of its revocation (including, in particular, provision for detention under section 3 of the 1983 Act).
(7) The order may modify a provision of the 1983 Act in its application in relation to a patient who is subject to after-care under supervision immediately before the commencement of section [Repeal of provisions for after-care under supervision].
(8) Provision made by virtue of subsection (7) may, in particular—
(a) modify any of sections 25A to 25J of the 1983 Act in their application in relation to a patient for so long as he is, by virtue of subsection (1)(a), subject to after-care under supervision after the commencement of section [Repeal of provisions for after-care under supervision];
(b) modify any of sections 17A to 17G, 20A and 20B of that Act (inserted by section 32 of this Act) in their application in relation to a patient in respect of whom a community treatment order is made by virtue of subsection (3)(d).
(9) A reference in this section to section [Repeal of provisions for after-care under supervision] includes the amendments and repeals in Schedules 3 and 10 consequential on that section.
(10) An expression used in this section and in the 1983 Act has the same meaning in this section as it has in that Act.’.—[Ms Winterton.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 3

Duty to assess needs
‘(1) The 1983 Act is amended as follows—
(2) After section 1 insert—
“1A Assessment of needs for health and social care services
(1) Where it appears to a local authority or a health authority that—
(a) any person with a mental disorder for whom they may provide or arrange for the provision of community care services may be in need of any such services, or
(b) any person with a mental disorder may be in need of services which are commissioned by the health authority in respect of mentally disordered persons—
the authority and the health authority shall carry out a joint assessment of his needs for those services; and having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.
(2) Where a local authority or health authority receives a request for an assessment under subsection (1) in writing by—
(a) the person with mental disorder,
(b) the carer, (as defined under section 1 of the Carers and Disabled Children Act 2000(c.16)),
(c) the person who is or who would be the nearest relative, or
(d) an approved mental health professional
the authorities must comply with subsection (3) below.
(3) The requirement referred to in subsection (2) above is to give notice, before the expiry of the period of 14 days beginning with the day on which the request is received, to the person who made the request of whether the health authority and local authority intends to undertake the assessment; and if the intention is not to undertake the assessment, of the reason why that is the case.”.’.—[Sandra Gidley.]

Brought up, and read the First time.

Sandra Gidley: I beg to move, That the clause be read a Second time.
The clause is a straightforward attempt to introduce a duty on health and local authorities to assess the needs of people with mental health problems, when appropriate, and to respond to written requests for assessment by certain key people within a fixed period. It provides also that clear reasons should be given for refusal.
The Scottish legislation has been referred to many times, and this will be another such occasion. In Scotland, a provision has been introduced whereby health and social services must respond to a reasonable request for assessment within 14 days. The response must take the form either of arrangement of an actual assessment or of written reasons for refusal.
Throughout our sittings, the Minister has admitted from time to time that past mental health provision in many areas was not good enough. I concede that things have to a certain extent improved, but there is a long way to go before they are good enough, and there are many parts of the country in which people do not have access to services. The patchy nature of access to mental health services means that in many respects it would be in the Government’s wider interests to have a mechanism whereby they could collect data indirectly on service availability. There are precedents in other Bills for providing such assessments. The Minister worked on the Adoption and Children Act 2002, which introduced a duty on local authorities to assess the needs of children who are being adopted.
In other areas of legislation, the Government have accepted the principle that there are occasions when there is a need for an assessment. The argument has been advanced that that somehow gives people with mental health problems greater rights than those with a physical health problem. That is not a robust argument because, for far too long, people with mental health problems and service users have felt that they do not have access to services and that they are the underdog when it comes to provision. The new clause would go some way to reassuring service users, who are quite worried by some of the compulsion aspects of the Bill, that if they come forward, their needs would be looked at in a wider context.
I shall quote a case story that does not involve a made-up Lily, Ruth or Mary. Lesley Savage is the mother of Daniel Gonzalez, who was convicted of killing four people in September 2004. She said that the family had made a hundred attempts to get help at various times and that
“We cannot list every phone call that went unanswered, every letter that went astray, every contact with a professional who told us they could not help or who passed us on to someone else. We cannot list here the ever-changing diagnoses that were offered, the ever-changing advice we were given, the lost and wrongly recorded notes that misled us and the professionals.”
If the Government are serious about preventing that sort of situation, providing an assessment would go a long way to allaying the fears of that mother, and the realistic fears of others who are in the system.
Section 47 of the National Health Service and Community Care Act 1990 already provides for a right to assessment for vulnerable people. The key mechanisms for enforcing that are the Commission for Social Care Inspection and the Healthcare Commission. In practice, section 47 assessments are severely limited. They are led by social services and focus on the need for community care services. In some authorities, assessments are carried out by a separate “adults with disabilities” team, which does not specialise in mental health care. Existing service users reported to the joint scrutiny Committee in 2004-05 that unless social workers are involved in their care, they are denied access to a community care assessment. The existing system provides a stop-gap, but does not address the problems and needs of service users.
By placing a duty on NHS organisations and social services departments to respond to requests for an assessment, the new clause would bring the 1990 Act up to date and reflect the more joined-up nature of services. It would also offer the same rights regardless of at what point an individual gets into contact with the system. Although the Government are considering many different people for being the approved person in charge, the new clause would ensure a holistic approach to assessments.
There is support for the new clause elsewhere. In 1999, the Government’s expert committee said that
“there should be a duty on the NHS and Social Services jointly to assess and meet the needs of people with mental health problems, with reasons if their needs could not be met.”
The joint parliamentary scrutiny Committee accepted that there was a compelling argument for balancing the draft Bill by including a duty to provide an appropriate and adequate mental health service. The Committee recommended that the Bill should include a duty on public services to assess and meet the mental health needs of people with mental health problems. The Disability Rights Commission has also stated that the Bill should include a right of assessment and treatment.

Rosie Winterton: As I am sure the hon. Lady knows, the new clause was debated at length in the other place, and I am afraid that I wish to reiterate a number of the points that were made there. There are existing duties, such as those in the National Health Service Act 2006 on the Secretary of State and in the National Health Service (Wales) Act 2006 on Welsh Ministers, to secure improvement in the physical and mental health of  people in the prevention, diagnosis and treatment of illness. There are also duties that provide for joint assessments between providers of health and community care services.
We believe strongly that the new clause would impose an additional duty in relation to mental health services that is not replicated for other patient groups such as cancer sufferers. Unfortunately, it would skew the priorities of the NHS in favour of one service at the expense of others. I am sure that were we to say that there should be specific assessments for mental health services, we would quickly find that other groups of patients such as those with coronary heart disease felt that they had been discriminated against.
However, if somebody requires an assessment to be detained under the 1983 Act, the assessment happens. That is the difference; because those circumstances involve detention, an assessment is required. The new clause suggests that there should be an assessment on every single occasion. I tell the hon. Member for Romsey that it will be up to clinicians to decide what further action should be taken if somebody presents with a particular problem, as they would with any other condition.

Sandra Gidley: Does the Minister accept that cancer services are much more widely accessed and much easier to access than mental health services? I suspect that there have not been similar cases in the cancer service or any other physical health service whereby people have had to make a hundred phone calls or write a hundred letters and received no help at all.

Rosie Winterton: The point of principle is whether to take one particular condition and create a difference from all other conditions in how an individual is assessed. Assessments will involve a small number of people deciding whether someone needs compulsory treatment, and I hope that it will be of some help if I say that when approved mental health professionals decide not to apply for detention, they should as a result of their assessment identify any further action required and do whatever is necessary to implement it.

Tim Boswell: This is a small point, but it may be important. The Minister said that that situation arose in cases of detention under the 1983 Act. We have just debated schedule 6 to this Bill, which will make changes to the 2005 Act on compulsory detention and the deprivation of liberty. Does she envisage that persons detained under the 2005 Act following the Bournewood case will be able to avail themselves of the services of an assessment?

Rosie Winterton: As we discussed, there will be an independent assessor on the deprivation of liberty. The provision discussed relates to that, not to treatment.
 The role of the approved mental health professional, when considering whether further treatment is necessary having made an assessment, will include referring on for a community care assessment and/or a health service assessment if appropriate. The draft illustrative code of practice provides specific guidance on that point, including that all persons involved—the patient and carers too, of course—should understand the alternatives to detention proposed by the AMHP.
With that explanation, I hope that the hon. Member for Romsey will seek leave to withdraw the motion.

Sandra Gidley: I shall not detain the Committee longer. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 5

Seclusion
‘(1) The 1983 Act is amended as follows.
(2) After section 142 insert—
“142A Use of seclusion and other forms of behaviour management
(1) This section applies to the use of seclusion, mechanical restraint or other interventions to manage disturbed behaviour as may be specified for the purposes of this section by regulations made by the Secretary of State.
(2) For the purposes of this Act, seclusion means the removal of a patient without consent from normal levels of association or freedom of movement for the protection of others from significant harm.
(3) A patient shall not be so removed except for the purpose stated in subsection (2) above.
(4) A patient shall not be subject to any form of intervention to which this section applies, except in accordance with regulations.
(5) The Secretary of State shall make regulations prescribing—
(a) circumstances under which any form of intervention to which this section applies may be used;
(b) reporting requirements on the use of any such intervention;
(c) review of such interventions with a view to bringing the intervention to an end;
(d) scrutiny of the use of such interventions; and
(e) circumstances under which patients subject to such interventions must be visited by persons authorised by the Commission.
(6) Before making any regulations for the purposes of this section the Secretary of State shall consult such bodies as appear to him to be concerned”.’.—[Dr. Pugh.]

Brought up, and read the First time.

John Pugh: I beg to move, That the clause be read a Second time.
The new clause should prompt a brief but useful debate about physical restraint and its use within the mental health service. It is about the use of seclusion, other forms of behaviour management, mechanical restraint and other interventions managing disturbed behaviour and the removal of a patient from normal levels of association and freedom—in other words, locking them away or keeping them in some very controlled environment. The new clause endeavours to specify certain purposes for which that may be done, suggesting that there should be regulations defining the circumstances in which any form of intervention might be used; reporting requirements for the use of such interventions, which obviously at times involve quite fraught methods of physical restraint; a review of such interventions, to find out how common they are; scrutiny of their use; and also a record of the circumstances under which patients subject to interventions are visited.
This is really the most troublesome of all ends of mental health care. More than 35 years ago, I think, I had my only experience of showing somebody into what was then a padded cell, in an old-fashioned, locked refractory ward. Even today I remember the episode very vividly. The individual was terribly distressed, standing out from all the other patients in many ways, and many of the patients were in a very severe state indeed. He was routinely excluded. He seemed to have some sort of immunity to drugs like Stelazine, the psychoactive then available. Therefore, he lived in a deeply troubled world, tortured by hallucinations. To this day I wonder what on earth could have happened to him.
My point is about what was done to him, however, which was not by and large therapy, but an act of therapeutic desperation. The only alternative was to over-sedate him, which is equally undesirable. Given that that is what happens in such extreme—I accept that it is quite rare—circumstances, it is entirely appropriate for us to have reports, reviews, scrutiny and a visit in order to minimise such episodes, because more sophisticated interventions might be able to prevent some cases happening. I accept that in modern medicine this procedure is rarely used and that there are alternatives. The more normal form would not be physical restraint, but some injection—forcibly delivered into the backside in all probability. Insofar as this happens at all, we need to record and regulate it as a precursor to minimising it.

Rosie Winterton: The new clause certainly raises an important issue. I appreciate the concerns that exist around the use of interventions such as seclusion and mechanical restraint in managing disturbed behaviour. I know that the subject concerns my hon. Friend the Member for Norwich, North as well, obviously because of the very distressing case of Rocky Bennett and the following inquiry.
Many issues have come to the Government’s attention in the past few years. I can assure the Committee that we share the common objective of ensuring that there is no inappropriate use of seclusion, restraint or similar interventions. We want to see such measures taken only when they are essential and used properly, and that patients have adequate safeguards.
However, I must tell the hon. Member for Southport that new clause 5 is not the best way in which to address those concerns. It would not be practical to define in regulations all the situations in which disturbed behaviour may need to be managed and the range of techniques that may be used and it would limit the ability of staff to respond flexibly to the wide range of situations that they may face. There are circumstances in which restraint will be the only action available to make a dangerous situation safe. Also, regulations run the risk of inhibiting the development of new and improved techniques for managing difficult behaviour. We have to be careful not to do that.
The management of disturbed behaviour and the techniques involved are not regulated specifically by the Mental Health Act, but they are subject to general criminal and public law, including the Human Rights Act 1998. They are also subject to the professional duties and obligations of the practitioners involved. We have reflected the 2004 guidance from the National Institute for Mental Health in England in the code of practice, which also advises adherence to the National Institute for Health and Clinical Excellence guidelines, which were issued in 2005. That guidance addresses the issue of the management of aggression and violence, including restraint.
The Healthcare Commission and the Health Inspectorate Wales will be mindful of the guidance when they visit hospital units—they would wish to be satisfied that it is being followed.

Tim Boswell: I am following the Minister’s argument with quite a lot of sympathy. I understand the case for flexibility and the difficulty of covering everything in regulations. There was a trainee in a secure training centre in my constituency who sadly died. A restraint lock was used on him, in accordance with Home Office guidelines, but he collapsed and died. We need not expand on that now. Does the Minister agree that it is terribly important that less invasive and aggressive techniques are developed and brought forward and communicated as best practice as soon as possible? The fact that we have set guidance in the past, perhaps because a practice was acceptable at the time, does not mean that we so much as tacitly accept that it is the way forward. As soon as we know a better way, we should avoid old practices.

Rosie Winterton: The hon. Gentleman is absolutely right. One of the reasons why we do not want to accept the new clause is that the spreading of best practice in the way in which he described might be hampered. Hospital managers also have responsibilities for best practice. They should regularly review the use of seclusion. Providers should have clear written policies on the use of restraint, which should include provision for review and for the application of restraint to be audited and reported to hospital managers.
The “Count Me In” census collects and publishes information about periods of seclusion during an in-patient’s stay in hospital. It also records incidents of hands-on restraint, which it defines as the physical restraint of an in-patient by one or more members of staff in response to aggressive behaviour or resistance to treatment.
We will, however, consider how information on the use of seclusion and restraint may be reported to the new regulator for England. That will also be a matter for Welsh Ministers, and it will be an important step forward. The guidance on seclusion and restraint has been revised and updated during preparation of the draft illustrative code of practice for England to accompany the Bill, and it will be further developed in the new code, on which consultation will take place.
The Government completely understand the concerns that underlie the new clause, but we oppose it for the reasons that I have stated. I can give a commitment to hon. Members that we shall continue to work to ensure that restraint and seclusion are used only when they are essential.

John Pugh: I thank the Minister for that enlightenment and range of assurances. I beg leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 18

Local arrangements for assessment, conveyance and admission of urgent cases
‘In the 1983 Act, for Section 140 (Notification of hospitals) substitute—
“140 Local arrangements for assessment, conveyance and admission of urgent cases
(1) It shall be the duty of every Primary Care Trust, in conjunction with—
(a) the NHS Trusts contracted to provide in-patient mental health services and ambulance services within its area,
(b) the police authority or authorities within its area, and
(c) the local social services authority or authorities within its area,
to prepare, publish and maintain a comprehensive, up-to-date scheme for the safe, timely and effective management of the cases of patients within its area who may require urgent admission to hospital for treatment for mental disorder, whether under this Act or otherwise.
(2) This scheme shall include details of—
(a) the arrangements for the assessment of urgent cases and for ensuring the safety of the patient, carers, those carrying out the assessment and any other persons present during the assessment,
(b) the arrangements for obtaining a bed, if required, and the criteria for determining the relative priority of urgent cases awaiting admission,
(c) the arrangements for ensuring safe custody and conveyance of patients who need to be admitted to hospital under Section 6(1) of this Act,
(d) agreed time-limits for response by the bodies listed in 1 (a-c) above in cases of urgency where there is a serious risk to the safety of the patient or others.’”.—[Ann Coffey.]

Brought up, and read the First time.

Ann Coffey: I beg to move, That the clause be read a Second time.

Frank Cook: With this it will be convenient to discuss
 New clause 19—Responsibility for conveyance to hospital
‘(1) The 1983 Act is amended as follows.
(2) In Section 11(2) after “sought”, insert “or in the case of a National Health Service patient, to the NHS Trust responsible for hospital provision”.
(3) In Section 6(1) for “applicant, or any person authorised by the applicant” substitute “the body to which the application is addressed, or any person authorised by that body” and for “convey him to the hospital” substitute “convey him to the hospital identified by that body as being able to receive him.”’.

Ann Coffey: New clause 18 seeks to substitute, for section 140 in the 1983 Act, a new section that would give duties to primary care trusts and others in relation to the assessment, conveyance and admission of urgent cases. New clause 19 seeks to amend section 6(1) of the 1983 Act to move responsibility for finding a bed from the approved social worker or the new approved mental health practitioner to the hospital trust.
I thank the Minister for meeting me to discuss the proposed new clauses, and I thank the approved social worker leads’ network—particularly Claire Barcham of that organisation—for her excellent written submission which very clearly outlined, with examples, the practical difficulties that ASWs face in implementing their present duties in relation to emergency admissions from the community. Claire Barcham gave many examples of those difficulties, and I am sure that that has convinced members of the Committee of the strength of their arguments.
ASWs are involved in approximately 47,000 admissions each year, of which 27,000 are admissions from the community, so they know what they are talking about. The procedures for admitting people to hospital in an emergency are vital in achieving the principles outlined in clause 10 of the Bill, about which there has been much discussion in the Committee and in the Lords, so it is important that we get them right. The principles set a standard, and we must ensure that those who will have the responsibility for implementing the Bill are not faced with the practical barriers that ASWs face at the moment.
The current sections 6 and 140 of the 1983 Act place a responsibility on health authorities to provide a bed, but because of the drafting of the provisions and the lack of local protocols, the task of finding a bed and of making arrangements for conveying people to hospital has in practice fallen to the approved social workers. The code of practice accompanying the 1983 Act has guidance that mentions local procedures, but it is clear from the written submission and from the examples that the code does not always work in practice.
Part of the problem, which is also the reason why the examples are anecdotal, is that there is no monitoring to check whether such protocols are in place locally and whether local health, police and social services authorities are co-operating with the protocols. Furthermore, protocols do not form part of any mental health services inspection. The result is that since introduction of the 1983 Act there has not been any pressure or lever to ensure that good local protocols are developed. We should not make the same mistake again.
Examples have been provided in the written submission by the approved social workers. I spent a day with a mental health assessment team in London to see for myself the practical difficulties that approved social workers face. It was interesting. While I was there, a request was made by the police for a mental health assessment on a man who had been arrested that morning after a neighbour had complained. He had already been in the cells for three hours. He had not yet been interviewed by the police because the police doctor did not feel able to say that he was fit for interview. For that reason, a request for a mental health assessment had been made.
Before the approved social worker could carry out the assessment, she had to find two doctors who could be present at the same time. She also had to arrange for a bed. By the time that we had arrived at the custody suite, the man had been in the cells for six hours. It was decided that he did not need to be admitted to hospital as an emergency, and I expect that he spent several more hours in the cells while being interviewed with his solicitor. Such an event showed me how practical things on the ground must work if the high-level objectives set out in the Bill are to be achieved.
I take the point that police cells are not necessarily safe places, but the man had waited for three hours in what was a safe place for him. If that man had been in his flat and had not been arrested by the police at 8.30 that morning and a request had been made for a mental health assessment because of his bizarre behaviour, the approved social worker could well have had to arrange for doctors to go the flat to assess him. The ASW could not have applied for him to be admitted to hospital because there was no bed. She would then have had to delay the assessment and rearrange the time for the doctors. She might have gone on the visit even though the doctors perhaps could not have come for several hours. She might have thought that, on balance, it was better to go out to the flat to do the assessment. She would have had to wait with a very distressed man or his carers, while arranging for a bed so that she could make the application. Alternatively, she could have taken him to a place of safety, which could have been a police cell or an accident and emergency unit at a hospital, neither of which are good places for someone in an unstable condition.
Additionally, when I left in the evening there were a further five requests on the approved social worker’s desk for a mental health assessment of people living in the community. They were judged to be a risk to others. They had a history of violent or abusive behaviour, so the approved social worker rightly was not prepared to see them without police support. The requests were on the desk because the approved social worker was waiting for the police to say when they could undertake a risk assessment.
 The police carry out an assessment of how much of a risk they feel the person is to them. If they think that the risk is high, ironically the waiting time for police support might be longer because resources have to be provided, such as six policemen instead of one. It is not very easy to collate details to know how many such instances result from the community and 999 calls, arrests, assaults on the public, carers, neighbours or self-harm. However, the time between someone becoming concerned about a person’s behaviour and assessment of their condition must be the time of maximum risk.
 The new clauses would put in place a duty to set up local protocols so that responsibility for making arrangements does not fall solely on the approved social worker or, in future, the approved mental health professional. They would ensure that, in future, admissions and conveyance to hospital took place according to a local protocol, with agreed time limits for responses, and that requests for assessments were not delayed unacceptably by inability to obtain police support.
There are other issues in relation to admission, such as accessing transport and ambulances. In new clause 19, the reason for moving the responsibility from the approved social worker to the hospital trust is to put pressure on PCTs to have in place proper commissioning arrangements for their beds. It is also an issue for age-appropriate treatment. Proper commissioning plans are needed to achieve that.
I knew that the Minister would have concerns about the new clauses, but I hope that she can reassure us that when the new code of practice is drawn up, there will be much stronger guidance about the local protocols that should be in place, including time limits for assessment and admissions.
Those protocols and any complaints by local bodies or authorities should be regarded as part of a local inspection of mental health services. That is the only way we can provide a lever to ensure that local protocols are drawn up. I hope that the Minister will also consider how the police can be involved in that, either through discussions with the Association of Chief Police Officers or as part of their responsibilities under local crime and disorder partnerships to ensure community safety. In discussions with officials about drawing up a stronger code of practice, I would request the Minister to involve the ASW leads network.

Rosie Winterton: I was extremely grateful to my hon. Friend for giving such a vivid account of some of the problems that approved social workers face in the field, which she clearly experienced during her day on the front line. She explained clearly the issues that underlie the new clauses and responded to the problems that some approved social workers have experienced in getting ambulance, police and trust bed managers to co-operate in conveying and admitting patients to hospital. I sympathise with her concerns and thank her for bringing them to the attention of the Committee.
It is essential that local services are co-ordinated to ensure that patients are conveyed safely, efficiently and in the least distressing way for them and their family. That goes back to the discussions that we had this morning about places of safety. However, I have to tell my hon. Friend that we may not be able to solve such difficulties in primary legislation. She was right when she said that the arrangements for co-ordinating local services must be a matter for local decision. As a result of our meeting, I have had discussions with officials about what else we can do in that regard. We are considering issuing a circular to relevant bodies, such as local authorities, trusts and police authorities, stressing that it is their responsibility to ensure that local protocols are working. We are also considering how to amend the Mental Health Act codes of practice to make that responsibility clear.
As a result of my hon. Friend’s suggestion, I have asked for the ASW leads network to be represented on the steering group of an existing Government project that is co-ordinating health trusts, local authorities and emergency services, including police and ambulance services, to develop guidance on working together to manage people experiencing mental disorder. That guidance will cover the safe and efficient conveyance of patients to hospital.
Something else that I recall from the meeting and should like to consider further is the issue that my hon. Friend has just touched on, which is the extent to which we can encourage regulators and inspectors to examine local protocols and see whether they are working effectively. I wish to do some further work on that, although I cannot guarantee anything because regulators have a certain independence. It is certainly something that I can take away and look at.
As I have said, the issue is very important and we want to get it right. I hope that the way forward that I have suggested will be acceptable to my hon. Friend and that she will withdraw the motion.

Ann Coffey: I thank my right hon. Friend the Minister for her positive and appropriate response to the issues that I raised. I agree with her that protocols must be drawn up locally, and I am pleased that she is examining ways to tighten them through the code of practice and ensure that they are monitored and not simply ignored. On that basis, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 22

Right to move hospital (No. 2)
‘(1) The 1983 Act is amended as follows.
(2) After section 19 (regulations as to transfer of patients) insert—
“19A The right to move hospital
(1) The appropriate authority shall have a duty to inform a patient and his nearest relative that a request can be made to move from one hospital to another if there is a good reason to do so.
(2) All applications shall be recorded by the appropriate authority.
(3) If an application is refused, written reasons shall be provided to the applicant and, subject to the wishes of the patient, to the nearest relative.”.’.—[James Duddridge.]

Brought up, and read the First time.

James Duddridge: I beg to move, That the clause be read a Second time.
 I thank my hon. Friend the Member for East Worthing and Shoreham for the opportunity to move the motion on the new clause, which would essentially give mental health patients the right to move hospital. It breaks down into three parts: a duty to inform the patient or their nearest relative of that right, a requirement to record when it is exercised and a request is made and a requirement of authorities to provide written reasons if a reasonable request is turned down. I wish to make three broad points: the first on choice, the second on why there is a need of a little additional bureaucracy and a little evidence, and the third considering the black and minority ethnic communities, who have inspired the new clause although it does not apply exclusively to them.
Choice is a buzz word in the NHS generally. For instance, non-mental health patients will have a choice of four hospitals by 2007 or 2008, which will be a much wider choice. In fact the NHS website states:
“You now have the right to choose.”
Well, that is not the case at the moment in mental health. The Institute for Public Policy Research, an organisation whose work I do not read in its entirety, has a paper called “Mental Health in the Mainstream”, which is very insightful. I quote from the IPPR’s “A Good Choice for Mental Health”, which states that
“despite different policy initiatives to promote greater user involvement in mental health, the choice agenda is yet to have a significant impact on people’s lives or experience of services”
in mental health. The Sainsbury Centre for Mental Health is similarly critical of the Government and states that choices should be offered to
“reflect the individual’s beliefs, values and preferences as well as clinical need”.
Indeed, it states:
“Appropriate information and advice should be available to empower people to make informed choices.”
I believe that that should be in the Bill, not in a code of practice. That would fit with Government policy, and I shall come to that point later when talking about the Bennett case. The Minister is looking confused, but I shall explain my rationale as to why I feel that that fits with the Government commitments made following the inquiry into the tragic death of David Bennett in 1998.
I turn to the point about extra bureaucracy, because I recognise that in another place there were criticisms of a similar amendment because of that. From my own experience, I know that going into a hospital is a frightening experience. It is difficult to listen to what a doctor or professional is saying, process the information and recall it. Somebody with a mental health problem has a lot more issues to deal with than someone with a simply physical disability. I feel that recording a request that has been made, and writing the reasons why it has been turned down if there is not good reason for a transfer, are worth that extra bureaucratic time.
The third point that I wish to make concerns the black and minority ethnic population. Lord Patel of Bradford raised this issue in another place. He said:
“It is not uncommon for a patient or relative to express a wish for a transfer between hospitals, whether this is to be nearer home or because of a preference for one hospital’s regime over another. We should be mindful that it is current government policy that prospective patients across the rest of the NHS should be encouraged to express choices in hospital care and that they should be acted on. If we cannot extend this agenda around choice to psychiatric patients, even in this limited way, we risk further excluding them and increasing the stigma of psychiatric treatment.”—[Official Report, House of Lords, 17 January 2007; Vol. 688, c. 751.]
That is particularly true for people in the black and ethnic minority communities.
The Government’s own Department of Health report “Race equality impact assessment” states that
“the effects of mental health legislation apply disproportionately to some BME groups.”
 To pick four examples, in BME groups, more people are likely to be diagnosed as schizophrenic; to be sectioned under the 1983 Act; to be moved from open wards to closed wards; and to be given higher doses of medication. Given that the Commission for Racial Equality said that we should avoid all unlawful discrimination, it is important that the Government include a provision in the Bill. Although it is not certain that racism forms the totality of the difference, a reasonable person would believe, as I certainly do, that absolute racism forms part of the problem. Black Mental Health UK, which focuses on African and Caribbean communities, feels that this Bill is “unethical” and “unworkable”, and a missed opportunity for reforming the 1983 Act.
I hope that the Minister will accept the new clause. I see that she is looking positive. This is the first time I have moved such a motion on a new clause, and it would be gratefully appreciated if the right hon. Lady, not because of that, but because of the power of the argument, supported it.
Black Mental Health UK highlights a number of other problems, such as linguistic problems. More than 300 languages are spoken in London. There are problems of racial differences. If people are moved from urban centres—the evidence across the board is that ethnic and particularly black populations are largely in conurbations—to facilities in the countryside, not only is that a big change for them, as it would be for anyone, but the practitioners in the institutions are likely to have less cultural sensitivity and less personal experience of those various communities. There could be a very good reason why people in black and minority ethnic communities would much prefer to be transferred to areas of their preference.
As I said I would, I turn now to the David Bennett inquiry, following that gentleman’s tragic death. The independent inquest into David Bennett’s death said:
“All psychiatric patients and their families should be made aware that patients can apply to move from one hospital to another for good reason”—
these are almost exactly the same words as appear in the new clause—
“which would include such matters as easier access by their family, a greater ethnic mix, or a reasoned application to be treated by other doctors.”
The Minister will note that we have not gone into this long list of detail; I think that she would prefer that it went into a code of practice, so that the provisions are flexible. I hope that not including the full list in the Bill while nevertheless referring to these matters would give that degree of flexibility. The inquest went on to say that
“all such applications should be recorded”.
Again, the words are similar to those in the new clause. The inquest continued:
“They should not be refused without providing the applicant and their family with written reasons”,
Which is the third part of the new clause.
The reason why I think that Minister is likely to support the thrust of the new clause is that in delivering their report “Race equality and mental health care”, following the death of David Bennett, the Government said:
“We accept this in principle.”
All the points that I have gone through that have been mirrored in the new clause. They went on to say:
“Every such request should be considered carefully and receive a reasoned response that takes into account the needs of the service user and their assessed best interests. A BME patient’s wish to be closer to their family, or to be cared for in a more ethnically mixed environment, should be listened to, recorded and met unless there is a good reason not to meet it. It is good practice for refusal to be explained in writing.”
That is the Government saying exactly what is in the new clause, which is why I hope that the Minister will be minded to support it.

Charles Walker: Thank you, Mr. Cook, for calling me to make a brief contribution. I am in a difficult position in following such an excellent speech by my hon. Friend, who made some important points about people’s right to apply to move to different hospitals. I am aware that the Government are looking to replace beds with greater  community services, which may mean that the distance between areas or hospitals with beds will grow.
In a place with fewer beds, most might be occupied, creating a greater need to move people to a more far-flung location to give them the emergency treatment that they need. It is important, as with all illness, to have emotional and family support. If we must move people far from their homes to receive treatment in an emergency because a hospital more convenient to them and their family is full, we should consider at the earliest opportunity whether they wish to move back to a bed nearer to their family and friends, if that is in their interests, so that they can derive support from them.
It is also important that the convenience of clinicians should take second place to the patient’s interests. It might be more convenient for a clinician to put someone in a bed in a certain location, but if it is in the patient’s interests to be moved, we should be sensitive to their wishes. It therefore gives me great pleasure to support made by my hon. Friend the Member for Rochford and Southend, East.

Rosie Winterton: The hon. Member for Rochford and Southend, East is very tempting—[Laughter.] He is particularly so as the virgin mover of a new clause. However, I am afraid that I might have to disappoint him, although I want to say straight away that I certainly understand his reasons for tabling the new clause. It would require the appropriate authority—I presume that the hon. Gentleman means the hospital managers—to establish a formal procedure to advise patients and their nearest relatives that a transfer to another hospital can be requested if there is good reason.
The new clause is similar to an amendment tabled in the other place, and it raises important issues of good practice. As the hon. Gentleman and the hon. Member for Broxbourne pointed out, it reflects one of the recommendations of the David Bennett inquiry. I accept the principle behind the recommendations, but I must again refer the Committee to the fact that it would be better to put them into the code of practice.

Ian Gibson: As the Minister pointed out, I was fairly involved in the Rocky Bennett case, as it was in my constituency, and I met his sister, who had fought hard on the issues for some time. I seem to remember that the reason why racism reared its ugly head was that people took Rocky aside and sat on him and not the other person involved in the altercation, who happened to have a different skin colour. That was where people picked up on the idea that a racist element was involved.

Rosie Winterton: My hon. Friend is quite right to say that that inflamed the situation. In our action plan, “Delivering race equality in mental health care”, which accompanied our response to the David Bennett inquiry, we certainly reinforced the message that all requests to transfer to another hospital should be carefully considered and receive a reasoned response. That should include such factors as a patient’s wish to be closer to his family or to be cared for in a more ethnically mixed environment.
As I said, it is not right for us to introduce the sort of prescribed process for transfer requests that would result from the new clause. Information is important, as the hon. Member for Rochford and Southend, East rightly said. However, we should look again at the code of practice; there should certainly be no objection to giving guidance in the new version of the code about the need to inform patients and their nearest relatives of the possibility of transferring to another hospital. We could look at whether all transfer requests should be recorded, and at whether written decisions should normally be recorded in response to all such requests.
It would also be possible to go a bit further than the new clause seeks to do. We could look at listing the sort of factors that hospital managers should take into account when deciding whether a transfer is appropriate. Particularly, in response to concerns raised by hon. Members regarding BME issues, we could emphasise more issues of cultural needs, for example. I would like to look at whether that can be done in the code of practice more effectively than it is at present, and I would certainly welcome any views that members of the Committee have on what we could say there. By doing that, we will be able to get across to hospital managers, perhaps more effectively than we could in legislation, the wide range of factors that might be relevant in deciding whether a patient should transfer to a different hospital.

Charles Walker: Given the mental state of a patient and the possible lack of awareness of their family, will the Minister actually introduce measures to empower managers to say to families, ‘There could be a better solution than the one that we are currently offering you—a hospital nearer your home”? Under such an arrangement, instead of waiting to be asked, the managers would go and initiate a hospital move.

Rosie Winterton: The hon. Gentleman makes a valid point about the need to talk to carers or family members, as appropriate. In particular, that is why it is good that we have enshrined in clause 10 the idea that that should certainly happen.
Although I accept that the new clause is well intentioned, I hope that my response to the hon. Member for Rochford and Southend, East gives him some reassurance that we take this matter seriously and will be looking at it in the code of practice.

James Duddridge: Given that this is my first foray into these matters, you will understand, Mr. Cook, that I am deeply disappointed. The Minister has let me down gently, however, and she made a number of reassuring points. I look forward to following the detail in the new code of practice. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 27

Amendment to section 40 of Mental Capacity Act 2005
‘(1) In section 40 of the Mental Capacity Act 2005—
(a) in paragraph (a) after “P” insert, “other than a donee for property and affairs of P acting in a professional capacity”,
(b) in paragraph (c) after “P” insert, “other than a deputy who has been appointed by the Court for the property and affairs of P in a professional capacity.”,
(c) in paragraph (d) after “P” insert, “other than a donee acting in a professional capacity”’.—[Angela Browning.]

Brought up, and read the First time.

Angela Browning: I beg to move, That the clause be read a Second time.
The aim of new clause 27 is to amend section 40 of the Mental Capacity Act 2005 to ensure that the relevant bodies are required to appoint an independent mental capacity advocate if an attorney or deputy has been appointed solely to manage the property and financial affairs of the individual concerned and if there are no suitable family members to consult. In another place, on 29 January, Baroness Ashton indicated her agreement:
“I reassure your Lordships that deputies who have been appointed in a professional capacity purely for the purposes of property and affairs would not, under the Mental Capacity Act, have the authority of the court to take decisions which lie outside the scope of “property and affairs”. These deputies will not have the authority to help or represent a person where decisions are being considered concerning serious medical treatment, care moves or adult protection. Therefore, if no other family or friends are able to support and represent the person without capacity in making decisions on these issues, the person will be entitled to an independent mental capacity advocate.”—[Official Report, House of Lords, 29 January 2007; Vol. 689, c. 110.]
Paragraph 10.71 of the code of practice states:
“The Government is seeking to amend the Act, at the earliest opportunity, to ensure that, in such circumstances, an IMCA should always be appointed to represent the person’s views when they lack the capacity to make decisions relating to serious medical treatment or long-term accommodation moves.”
I understand that the Government are seeking to amend the 2005 Act on that matter at the earliest opportunity. This seems to be that earliest opportunity; I am disappointed that the Minister has not tabled a Government amendment and that I have had to table my new clause. I would be grateful if, as we discuss this final new clause, the Government gave a positive and glowingly supportive response.

Rosie Winterton: The hon. Lady is extremely persuasive, and we shall return to the issue on Report. I cannot accept the new clause because we want to consider certain technical issues. However, we certainly wish to return to the matter and I can be encouraging and say that her case is convincing, as was that made in the other place. I hope that she will withdraw her new clause. I shall keep in very close touch with her about any amendment that we bring on Report.

Angela Browning: I am absolutely delighted. The Making Decisions Alliance, which has done a lot of work on that aspect of the Bill, will be equally pleased at that positive response from the Minister. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Ordered,
That certain written evidence already reported to the House be appended to the proceedings of the Committee.—[Ms Winterton.]

Question proposed, That the Chairman do report the Bill, as amended, to the House.

Rosie Winterton: I am sorry, Mr. Cook; you look a bit disappointed at my rising. I want to give you immense thanks for the marvellous way in which you have controlled our proceedings. All Committee members would like to thank you, Lady Winterton—and Miss Begg, who chaired our proceedings on one occasion. The Committee has been very lively and generally good tempered.

Tim Loughton: Not always.

Rosie Winterton: Mostly good tempered. I am upset that the hon. Member for Daventry is not here because I was reminiscing about his remarks on sex addiction. However, not only sex addiction, but the difference between chinchillas and scintillas was raised at some point in the proceedings, and this afternoon we have had the virgin amendments.
Seriously, I thank all members of the Committee for good, well-informed debates that have demonstrated the real interest of all parties in the issue.

Ian Gibson: I, too, congratulate all three Chairs of the Committee. I am sure that there will be a further debate on the issue; it has not gone away for ever and the arguments will return. Any meetings that people have heard about next week remain a mystery to me. Obviously, all sorts of things go on in the ether while we are incarcerated in this room, but people should not believe what they see on their phones and text messages, as the illustrious Chairman pointed out.

Rosie Winterton: I suspect that my hon. Friend might be referring to a meeting that has apparently been organised in his name for next week. I suggest that he takes up such things with the House authorities or the Speaker.
I put on record my appreciation of the large team of officials who have worked not only during proceedings on the Bill, but for the past nine years on this issue. Their patience is extraordinary and they have done a good job. I hope that all hon. Members will join me in saying how professional the officials have been. [Hon. Members: “ Hear, hear.”] They have been more than willing to talk to Opposition and Labour Members about issues relating to the Bill. I also thank the Clerks to the Committee and everyone else who has assisted us in our considerations. I am sure that members of the public in the Gallery, who have sat gallantly through the proceedings, will agree that, although there have been disagreements, some of which remain, we have had thoughtful debates on a wide range of issues.
I particularly thank Labour Members for their rapt attention—they have been marvellous. Of course, I also thank our Whip, who has tried to ensure that we progressed gently through our discussions and, where necessary, examined the Bill in detail while ensuring that we got to the end having properly considered all hon. Members’ amendments. I thank everyone who submitted memorandums to the Committee and the Opposition spokespeople who have made some constructive comments that I hope have been useful in clarifying public understanding of the Bill.
It has been an honour and a privilege to serve on the Committee, under your chairmanship, Mr. Cook, and that of Lady Winterton and Miss Begg. I am grateful for all the support that we have been given.

Tim Loughton: Allow me to tantalise your indifference for a new more seconds, Mr. Cook, following the Minister’s Oscar performance. I echo her thanks to you, to Lady Winterton and to Miss Begg for chairing this difficult and complicated Committee during the past three and a half weeks. It is particularly important to thank you for the additional work that you have had to undertake in vetting no fewer than 70 submissions that will form part of the record. Written submissions are part of the new format Committee procedure, and this is the first such Committee of which I have been a member. A lot of extra work is involved for hon. Members in reading the submissions and for yourself in reviewing them beforehand. The task has been done exceedingly effectively, and the swiftness with which you have dealt with them so that they could be scrutinised is greatly appreciated.
 I offer the Opposition’s thanks to the Clerk, who has been extremely helpful in scrutinising some of our amendments, and who has made some helpful suggestions as to which might be looked upon more favourably by you, Mr. Cook. Dr. Benger has been of great assistance in that. I thank my hon. Friends—particularly the hon. Members for Tiverton and Honiton and for Daventry, who, in the nicest possible way, are old lags when it comes to Committee work. With their Mental Capacity Act hats on they have brought enormous expertise to the Committee. My thanks are also due to my hon. Friend the often highly animated Member for Broxbourne, who has put his interest in mental health to good effect in the Committee, and to my hon. Friend the Member for Rochford and Southend, East, who is now no longer a new clause virgin and who tempted the Minister but was ultimately let down, disappointed and spat out by her. What a metaphor that is for the relationship between the Government and the electorate at the moment.
 Nevertheless, it has been good to have the engagement of the Labour members, all but one of whom contributed to our proceedings. They have brought a great deal of expertise and experience to our deliberations. The subject of the Bill is one in which we all have a genuine interest, and Labour members share many of our concerns. It was interesting to see that they all—without exception—turned out to be Government loyalists who voted for the Government, such was either the power of persuasion of the Minister or the knowledge that the prospect of a reshuffle under the forthcoming new regime is looming, perhaps.
I also thank the Hansard writers, who are probably going absolutely berserk.
Finally, we are all greatly looking forward to the various audiences with Rosie that have been promised. No doubt that Jean and Ruth and Mary and the various other imaginary characters that the Minister has conjured up during our deliberations will also be invited.
We have had an interesting experience. I fear and hope that this will not be the last that we hear of the Bill because many contentious decisions have been taken that many of our colleagues both in this and in another place will seek to overturn at the appropriate time.

John Pugh: May I echo the sentiments that have been expressed? I thank you, Mr. Cook, the Clerks and everybody who assisted in making the Committee the rational basis for discourse that it has been. We have achieved something. We lowered the temperature of the debate, which has been helpful because it was about a difficult subject. We have probed all of the key areas, which was important because none of us wants the legislation to be decided by parliamentary ping-pong.
If at the end of the day the battle lines are a little blurred and alliances have shifted, fundamentally, that will not be a problem for the sufferers. They are the main aim of the legislation, not our various campaigns and positions.
On a personal note, I mentioned last Thursday a constituent of mine whose letters —he wrote to me regularly concerning all sorts of issues—reflected his mild paranoia. I said last Thursday that I was stalked by that individual, and that he would be in my weekend surgery. I could not see him because I did not have time—I was talking to an Afghan chieftain, as one does.

Ian Gibson: In Stockport?

John Pugh: Indeed so.
I have with me here the contents my constituent sent to my letter box over a period of one and a half weeks. On serious reflection, here is a person, one of a hundred or probably thousands, who is completely bypassed by the legislation that we have been talking about. Such people are not bad enough to be sectioned, but they are not insightful enough to seek any help. They are not covered by any provision or legislation. Our debate has been constructive and forward-looking, but there is an enormous task to be done apropos mental health that has nothing to do with the Bill.

Question put and agreed to.

Bill, as amended, to be reported.

Committee rose at four minutes to Seven o’clock.